Fiske v. Casey

HARRISON, J. September 14, 1881, Henry Shoulters made a promissory note to the appellant for the sum of $150, with interest payable at the rate of three per cent per month in advance, and compounding monthly until paid. At the same time, he executed to the appellant, as security for its payment, a conveyance, absolute in form, of certain real property in San Francisco. Shoulters died at San Francisco in 1883, and in February, 1892, the respondent, Casey, was appointed administrator of his estate. March 23, 1892, the appellant presented his claim against the estate, upon the aforesaid note and conveyance, to the respondent, for allowance, and, it having been rejected by him, brought this action for the purpose [559]of having said deed adjudged to be a mortgage upon the land described therein, and for the sale of said land to satisfy the amount of the said note. The defendant admits these allegations of the complaint, and sets up as a defense that in March, 1892, prior to the presentation of the claim to him, he had applied to the plaintiff to ascertain the amount due upon the note, for the purpose of paying the same, and having the property discharged from the lien of the mortgage, and that upon such application the plaintiff declared to him that the instrument of conveyance was not a mortgage, but was a deed absolute, and that he was the owner of the property, and that the plaintiff then refused to entertain any offer from the defendant to pay off and discharge the mortgage. The cause was tried by the court, and judgment rendered in favor of the plaintiff for the sum of $163.91, the amount of the promissory note, with interest up to the date of its maturity, and for the foreclosure and sale of the land described in the instrument. Plaintiff moved for a new trial, which was denied, and from that order, as well as from the judgment, he has appealed.

The court finds “that, prior to the maturity of the obligation created by the note and mortgage described in the complaint, the plaintiff claimed that said mortgage was a deed absolute, and that he was thereby the owner of the property therein described, and refused to accept performance of said obligation before any offer of performance was made, and did not, after such refusal, and before performance was due, give any notice of his willingness to accept performance.” This finding is outside of any issue in the case, and cannot be considered for the purpose of supporting the judgment. The judgment itself depends upon this finding, as the theory upon which it was given is that the refusal therein found stopped the running of interest upon the note. It is unnecessary to determine whether this theory is correct, or whether the evidence in support of the averment of refusal in the answer would sustain such a finding, as the court has not made any finding upon this averment, and the finding which it has made is outside of any issues in the case. There is no averment in the complaint or answer that the plaintiff made any claim of ownership in the property, or refused to accept performance of the obligation in the note prior to its maturity, or prior to